Lapas attēli
PDF
ePub

helpful in reviewing the investigation as well as determining the circumstances also should be included as enclosures.

The investigating officer need only collect sufficient information so that he and subsequent reviewing authorities can clearly determine the circumstances surrounding the incident; in many cases, that can be accomplished by obtaining a simple statement from the injured person. If the circumstances surrounding an injury require the investigating officer to seek a number of sources of information to establish that no misconduct was involved, an investigative report as outlined in section 0610 of the JAG Manual should be used.

REPORTING THE FINDINGS OF THE INVESTIGATION

The bulk of fact finding bodies are informal one-officer investigations, which utilize the injury report form (NAVJAG-486 (rev. 8-61)) to report the results of the investigation.12 The use of the injury report form relieves the investigating officer of the laborious and time consuming job of preparing a preliminary statement, findings of fact, opinions, and recommendations as required for an investigative report.

Section 0702 of the JAG Manual provides that in all instances in which injury to naval personnel is the only subject of investigation, and the case is not of the type listed in section 0703,13 the injury report may be employed.14 If an injury report is not authorized, a more detailed report, meeting the requirements of the type of factfinding body convened, must be submitted.15 See Chapters II-VI of the JAG Manual for guidance as to the type of investigation required.

After the investigating officer has collected sufficient information to clearly establish the circumstances surrounding the incident under investigation, he should examine section 0703 of

12. JAG Manual sec. 0701.

13. JAG Manual sec. 0703 provides: "The injury report form may not be used in the following instances: (1) To report death of persons in the naval service. (2) Where a finding of 'not in line of duty' might possibly result. Sec. 0807. (3) Where a finding of 'misconduct' might possibly result. Sec. 0808. (4) Where there is an adverse reflection on the conduct or performance of personnel in the naval service. (5) Where members of the naval and Marine Corps Reserve are injured or killed en route to or from a period of active duty, training duty, or an inactive duty training (drill) period. (6) Where matters other than injury to persons in the naval service, such as claims for or against the Government, are involved. (7) Where there is any question of the mental responsibility or mental capacity of the injured party. Sec. 0810 and MCM 1951 para. 120. (8) Whenever the convening or higher authority determines that the best interests of the naval service or the individual would be served by a more complete report."

4. The Injury Report, O'Connor, Vol. XVI, No. 3 JAG Journal, 34, March-April 1962.

5. JAG Manual sec. 0810b.

the Manual of the Judge Advocate General to determine if the injury report form may be used. If he determines that it may, he then makes a narrative report of the circumstances surrounding the incident in item 15 of the form. The narrative is limited by the evidence obtained and attached as enclosures to the injury report. The documentation of the evidence should reflect every fact and circumstance considered by the investigating officer in rendering his report and summarizing the circumstances surrounding the incident.

Section 0703 of the Manual of the Judge Advocate General clearly sets out those situations in which the injury report shall not be used. The most troublesome instance for investigating officers is "where a finding of 'misconduct' might possibly result." 16 This does not refer to a statistical probability of a finding of misconduct. It refers to the evidence that has been compiled; that is, is there any evidence whatsoever which, combined with other evidence, indicates a finding of misconduct is appropriate. If there is such evidence the injury report shall not be used. If the investigating officer is uncertain whether or not the evidence might possibly result in a finding of misconduct, he should consult a law specialist and discuss the circumstances with him.

The injury report form should be used in those cases where injury results from sunburn, participation in sports, or field and training exercises. In these cases the investigating officer is required to do very little investigative work to enable him clearly to determine the circumstances surrounding the injury. However, in cases such as automobile accidents, much more investigative work is required of the investigating officer in order to enable him clearly to determine the circumstances surrounding the incident.

A finding of misconduct is a possibility in each of the following types of cases, and the injury report form should not be used if any of the following is a factor in the investigation:

a. quick draw or any gunshot wound

b. driving while under the influence of alcohol
c. falling asleep while driving
d. fighting or brawling

e. falling while under the influence of alcohol

This is not an exhaustive listing of the instances in which a finding of misconduct is a possibility; it is intended only as a guide.

16. JAG Manual sec. 0703 (3).

(Continued on page 276)

RECENT DECISIONS OF THE COMPTROLLER GENERAL

PREPARED BY THE FINANCE BRANCH, OFFICE OF THE JUDGE ADVOCATE GENERAL

CONFLICT OF INTERESTS-Initiation of contacts with procurement and budget personnel; prima facie violation of Civil Selling Statute

The Comptroller General's decision B-152160 of October 24, 1963 drew a little tighter the ring of opinions defining the limits of the civil selling statute, 5 USC 59c, as amended, which generally prohibits a retired Regular officer, for a period of three years following his retirement, from selling any tangible product to any agency of the Department of Defense and other specified Government departments, upon penalty of loss of retired pay while so engaged during the three-year period. The statute specifically forbids "selling, contracting for sale or negotiating for sale", and activities which fall within that phrase were amplified by Department of Defense Directive 5500.7 to include, inter alia, "liaison activity with a view toward the ultimate consummation of a sale even though the actual contract therefor is subsequently negotiated by another person." In his opinion B-144947 of March 15, 1961, the Comptroller General determined that "liaison activity" could include simply making contacts within the Government for the purpose of determining military requirements for products an employer might desire to manufacture, and that however indirect the contacts and any eventual sale might be, such activity was of the sort the conflict of interest regulations were intended to halt.

The retired officer in this case was employed as Planning and Evaluation Manager with a company selling to Department of Defense agencies, whose duties were to initiate contacts with personnel in command, procurement, budget, development planning and operations positions for the purpose of “discussing general trends in the military environment". Through these contacts the officer was to keep apprised of procurement procedures, policy changes, offices responsible for various programs, and the effect of the Department of Defense budget on military programs and requirements. At the time the case came to the attention of the Comptroller General the officer had apparently already been acting in this capacity for the company.

Following the rule enunciated in his opinion B-149705 of November 8, 1962 the Comptroller stated that for the conflict of interest laws to be completely effective employment of a retired officer in a position which involves making Government contacts apparently intended to facilitate an eventual sale must be viewed from the outset as falling within the scope of the civil selling statute and the portion of Department of Defense Directive 5500.7 quoted above. In most cases, he held, employment to make pre-contract contacts must be taken to constitute a prima facie case of improper selling. The effect of this approach is to lay down a rule of evidence for such cases which places a burden on the retired officer to rebut the presumption of impropriety by demonstrating "clearly and adequately" that the contacts he is employed to make are for some other, non-selling

purpose. The Comptroller General held that in this case the evidence did not show that the officer's contacts with procurement and budget personnel were made for any but the prohibited purpose of ultimately consum mating a sale for his company, and ruled that thereby he was not entitled to retired pay for the remainder of the three-year waiting period. (Comp. Gen. decision B-152160 of 24 October 1963.)

INDEBTEDNESS TO GOVERNMENT: Set-Off against final pay im proper when member is indebted to nonappropriated fund activity

A Marine private, convicted by special courtmartial on January 9, 1963 of participating in the theft of 23 bottles of liquor from a commissioned officers' mess, was sentenced to a bad conduct discharge, and was fur ther adjudged to be indebted to the Government in the amount of $39.84, the sum determined by the convening authority to represent his proportionate share of the total financial loss to the mess. This amount was setoff against the private's final pay pursuant to Section 0137, Manual of the Judge Advocate General of the Navy, which provides that when the United States has suffered a loss of money or property as the result of certain court-martial offenses for which a member has been convicted, the amount of loss may be deducted from that member's final pay and allowances at the time of his discharge. The Judge Advocate General of the Navy ruled that for purposes of this section indebtedness to a nonappropriated fund activity such as an officer's mess was the equivalent of indebtedness to the United States, and that the set-off was therefore proper (JAG: 331.1: bmc of 22 May 1963). In reaching this conclusion the Judge Advocate General relied on a bevy of federal court decisions, including Standard Oil v. Johnson, 316 U.S. 481 (1942), to the effect that nonappropriated fund activities are instrumentalities of the Federal Government. as well as two opinions of the Judge Advocate General of the Army which held that indebtedness to a nonappropriated fund activity is to be regarded as being equivalent to indebtedness to the United States for purposes of set-off against final pay (OpJAGA 1952/4354, May 27, 1952, 2 Dig.Ops., Pay, 101.9; OpJAGA 1953/ 5314, September 1, 1954, 5 Dig.Ops., Pay, 101.9).

The Comptroller General in his decision B-151979 of November 6, 1963, repeated the now ubiquitous maxim that for some purposes a nonappropriated fund activity may be deemed an instrumentality of the Government and for other purposes it may not, this case being one of those when it may not. The Comptroller conceded that an old line of decisions had once permitted set-off in cases such as this, but stated that his more recent decisions have followed the holdings of the Court of Claims in the Kenny and Taggart cases to the effect that money which is the property of a nonappropriated fund

(Continued on page 277)

COMMAND PROBLEMS WITH DRINKING

MOST

BY MINORS

LCDR DAVID J. KEENEY, USN*

OST COMMANDING OFFICERS are frequently confronted with problems involving alcoholic beverages and minor servicemen of their commands. It appears that these problems will not abate as long as the Armed Forces continue to be manned to a large extent by teenage draftees and enlistees.

In a port city like San Diego the following incident might be repeated several times a day at different commands. The city police on a routine check of the Friendly Bar discover Seaman Brash, obviously a novice drinker, to be among the customers. A check of identification shows Brash to be nineteen years old. He is apprehended, taken downtown and then turned over to Shore Patrol Headquarters. Shore Patrol in turn returns him under custody to his ship with a formal report slip alleging consumption of alcoholic beverages as a minor in violation of California law. The report also directs the commanding officer to advise the Senior Officer Present of what disciplinary action, if any, is taken in the case. What disciplinary action is legally possible in this case? Probably none. If it could be shown that Brash used a false identification card in the bar to prove his age or if he were drunk or disorderly, these offenses could be punished under Article 134 of the Uniform Code of Military Justice. But merely drinking as a minor off-station in violation of State law is not considered to be conduct of a nature to bring discredit upon the Armed Forces or conduct prejudicial to good order and discipline in the service, and, consequently, this is not punishable under the Code.1 The commanding officer seems to be left in this situation merely with the opportunity to give Brash a stern lecture and perhaps keep a tighter control on his liberty hours in the future. report to SOP and the Senior Shore Patrol Officer of action taken will probably be along these lines.

His

*Lieutenant Commander David J. Keeney, USN, is presently serving as legal officer, Naval Air Station, Patuxent River, Maryland. He holds the B.S. degree from Holy Cross College and the LL.B. degree from Georgetown University Law School. LCDR Keeney is a member of the District of Columbia and Ohio bars.

1. United States v. Grose, 26 CMR 740 (1958).

Having a large number of minors in his crew, the commanding officer is naturally concerned about their involvement with alcohol. He fears that when alcohol is combined with their immaturity, the results may include injury or death on the highway, arrests for disorderly conduct, and falling prey to confidence schemes and immoral situations while on liberty. In the interests of his men and his command, could the commanding officer issue an order prohibiting his minor sailors from drinking alcoholic beverages while ashore? Such orders of commanding officers of operational units, naval stations and naval air stations enjoining all minors of a command not to drink when outside the physical limits of the command have generally been held to be illegal. A West Coast Navy Board of Review said that such an order by Commanding Officer, Naval Air Station, Miramar, California, was so general and sweeping "as to constitute an unwarranted attempt to control conduct outside the geographical limitations of the naval station areas under the command control of the Navy, and would make an offense of inherently innocent acts, which relate neither to a military duty nor are directly connected with the maintenance of good order and discipline in the services". A later case regarding a similar order by Commanding Officer, Naval Air Station, Agana, Guam, resulted in a similar Board of Review decision. By letter the Judge Advocate General of the Navy gave advice in the same vein regarding the legality of an order proposed to be issued by the commanding officer of a squadron based at Naval Air Station, Patuxent River, Maryland.* However, the Judge Advocate General of the Navy by letter in 1961, advised COMDESLANT that "no categorical answer" can be given to the question "of the lawfulness of orders to military personnel who are minors directing them not to consume intoxicating beverages on liberty". The Judge Advocate General went on to say "In general, it may be said that orders not directly related to a military duty are lawful if,

3

2. United States v. Cox, WC, NCM 59 01392 (unpublished). 3. United States v. Digilio, WC, NCM 62 00028 (unpublished).

4. JAG ltr, JAG:131.5:ems, 25 Nov. 1958; JAG Journal, p. 18 (May 1959).

under the circumstances existing at the time, compliance therewith will serve to maintain or improve the safety, discipline, morale or welfare of persons in the naval service, to maintain or improve the efficiency of the Armed Forces, or to fulfill a recognized military function or mission. Thus, if the local circumstances were such that continued drinking by personnel who are minors could be shown to adversely affect, for example, the discipline or morale of a particular command, an order prohibiting such drinking would not be unlawful". Based on these views of the Judge Advocate General it would appear that various types of lawful orders could be issued by commanding officers provided they related to particular rather than general considerations and circumstances. For example, an order forbidding all minors to drink intoxicating beverages on the day prior to the ship's commencement of an operational readiness inspection might be lawful since the order could be considered designed to "maintain or improve efficiency". By contrast it might be noted that an order to a single individual, adult or minor, who has abused the use of intoxicants in the past, not to use them on future leave or liberty, even though issued "for his own good" would probably be legally objectionable because too broadly restrictive of private rights.

When the commanding officer of a station, ship or squadron issues orders relating to the drinking of intoxicants during liberty or leave, it is apparent that such orders attempt to regulate conduct beyond the physical limits of the command. What about such an order issued by an area commander or the commandant of a naval district to apply within the geographical limits of his area or district? As to the legality of such orders there appears to be conflicting authority. One case involved a general order issued by Commandant, Ninth Naval District, forbidding personnel under the age of twenty-one to purchase and/or consume alcoholic beverages when such purchase or consumption would be contrary to the state law. In its decision of May 28, 1962, a Board of Review upheld the legality of the order but held that the order did not apply to the particular accused in the case. In a supplementary decision on July 9, 1962, the same Board, on a Government motion for reconsideration, withdrew its previous action and held that the accused had in fact violated the order and sustained the conviction of this violation. One Board member dissented and stated in his opin

5. JAG ltr, JAG:322.1:eyd, ser. 677, 6 Feb. 1961.

6. United States v. Wilson, 12 USCMA 165, 30 CMR 165 (1961). 7. United States v. Smith, NCM 62 0585 (unpublished).

ion that "the relationship between drinking a glass of beer (or a few scotch and sodas for that matter) while on leave or liberty, is too remote to the morale, discipline and usefulness of the military service to lend it validity and legality”. (The legality of this order by Commandant Ninth Naval District, had been previously sustained by the same Board of Review in another case decided February 21, 1962.8)

In the Eleventh Naval District, there appears to be in effect a view contrary to that prevailing in the Ninth. Commandant, Eleventh Naval District, issued an instruction including a provision making it unlawful for persons under the jurisdiction of that command, under the age of 21, to possess, purchase or consume alcoholic beverages in the State of California." The legality of this regulation was tested in a special court-martial case which had been convened by Commanding Officer, U.S. Naval Hospital, San Diego. A Navy West Coast Board of Review in a decision of October 5, 1960, dismissed the specification relating to violation of the regulation on the grounds that the order did not relate to any "military necessity" and, consequently, it was not enforceable under the Code.10 It is interesting to note a seemingly contrary view contained in a letter to Commandant, Twelfth Naval District, dated January 9, 1953, from the Judge Advocate General in which it was said that the Commandant could "promulgate general orders" making the consumption and purchase of alcoholic beverages by minors a military offense.11

Whatever views station commanders may have regarding their authority, or lack of it, to deal with off-station drinking problems, there does not appear to be a need for similar concern for regulatory power aboard naval stations. Navy Regulations 12 provide for regulation of alcoholic beverages aboard naval stations in accordance with instructions issued by the Secretary of the Navy. The Secretary has exercised this authority in General Order 15 which includes a directive to commanding officers to issue detailed control instructions which "shall include a prohibition of sales to minors and shall in this and other respects be in conformity with applicable local laws".

Counterpart regulations on the same matter

8. United States v. McNicol, NCM 62 0133 (unpublished).

9. The legal age for consumption of alcoholic beverages in California is 21.

10. United States v. Sively, WC NCM 60 01076 (unpublished). In view of this decision the Commandant, Eleventh Naval District, amended the instruction by deleting the portion declared illegal by the Board of Review.

11. JAG ltr., JAG:1:2:ACJ:vs, Jan. 9, 1953. 12. Navy Regulations, art. 1269.2 (1948).

issued by the Air Force and Army to their installation commanders specify "21 years of age" instead of "minors".18 This difference is significant in those jurisdictions such as the District of Columbia and New York where persons over the age of 18 are permitted by local law to drink beer and ale. The Judge Advocate General of the Navy has held that the word "minors" as used in General Order 15 means a person who has not reached the age at which he may lawfully possess or be sold or given alcoholic beverages under the applicable local laws.14 Therefore, an 18 year old serviceman may be sold beer in a Navy EM Club located within the District of Columbia. Prior to 1948 when General Order 15 was first issued, there does not appear to have been any general prohibition in effect against minors drinking at clubs and messes ashore. At least the predecessor order, General Order 59 of May 13, 1935, contained no language making particular reference to minors. though by General Order 15 the Navy has made provision for the permissible age for on-station drinking to be flexible so as to be able to conform with local law, the same is not true of certain other areas of the law relating to intoxicants. Though Article 1269 15 as promulgated in 1948, prohibited alcoholic liquors for beverage purposes within naval stations located in 'dry' states or territories, the language effecting this restriction has now been eliminated. While General Order 15 requires that a commanding officer's instructions "on alcoholic beverages" be in conformity with applicable local laws, waivers of this restriction have been given by the Secretary of the Navy in individual cases. The Judge Advocate General has stated that there is "no legal objection to the introduction of alcoholic beverages at Naval Activities, even in . . . 'dry states' "16

Al

Despite the general prohibition against sales to minors contained in General Order 15, some commanding officers at naval installations have shown a desire to serve beer to minors aboard the station, apparently on the theory that, as between drinking ashore and drinking aboard, the latter is the lesser of two evils. It would seem probable that if a minor drank in the carefully controlled conditions of an Enlisted Men's club ashore he would run less risk of becoming involved in disciplinary problems with civil or military authorities and would be safer from traffic hazards. At one time the Commanding Officer of the U.S. Naval Propellant Plant made

13. AR 210-65, 30 June 1955; AFR 34-57, 15 Feb. 1961.

14. OP JAGN 1955/289, 20 May 1955, 5 DigOps (Posts, etc.) 11.7. 15. Note 12, supra.

16. JAG ltr., ser. 8639, 7 Nov. 1962.

a formal inquiry to the Judge Advocate General about his authority to allow minors to drink 3.2 alcoholic content beer aboard the station. The Commanding Officer was of the opinion the installation's status, being under exclusive Federal jurisdiction, rendered the law of the surrounding State of Maryland inapplicable. The Judge Advocate General replied to the effect that the requirement of General Order 15 of following local laws in this matter was not affected by an installation's jurisdictional status.17

To summarize, the following generalizations may be made about the commanding officer's power to prevent minors from drinking offstation: He cannot lawfully issue orders to minors of his command not to drink off-station while on leave or liberty; he cannot punish minors for drinking in violation of state law; in certain naval districts he may be able to legally punish minors who drink in violation of a district commandant's order forbidding drinking by minors, but in other naval districts this authority is not recognized. He can always punish the drinking minor who becomes drunk and/or disorderly or uses a false pass or identification card to obtain alcoholic beverages. With regard to on-station drinking, the station commander must issue orders which include prohibition of sales to persons under the ages of 21 or 18, depending on the local law.

The inability to punish minors for off-station drinking presents the commanding officer with several problems. Residents of nearby civilian communities have traditionally expected military commanders to prevent their servicemen from committing misdemeanors and felonies under local law and to punish those who do violate these civil laws. The command image and community relations are harmed when the civilian community learns of the inaction of the military commander on this matter. Also, the servicemen who learn that violation of local law in this matter results in no disciplinary action by the military commander, tend to downgrade their respect for the local law in general. Law enforcement officers of the civilian community, knowing that if any preventive action is to be taken it will have to be by themselves, take and hold more servicemen in custody in local jails.

Courts, boards and other authorities who have been required to rule on the legality of various forms of action by the commanding officers to punish minors for off-station drinking have usually held that the commanding officer is without such power on the principles that the matter 17. JAG:131.1:PHH:pt, ser. 2807, 16 May 1960, JAG JOURNAL XIV, No. 3, p. 61 (Oct. 1960).

« iepriekšējāTurpināt »